A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Benchmark Podcast: Friday, 29 May 2015

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Case Summaries

Montgomery v Lanarkshire Health Board [2015] UKSC 11
Supreme Court of the United Kingdom
Lord Neuberger, President; Lady Hale, Deputy President; Lord Kerr, Lord Clark, Lord Wilson, Lord Reed & Lord Hodge
Negligence - medical negligence - failure to warn - appellant gave birth to baby boy born with disabilities due to complications in delivery - appellant claimed damages in negligence against doctor employed by health board who was responsible for appellant’s care during pregnancy and labour and who also delivered baby - duty of doctor towards patient in relation to advice about treatment - causation - held: had doctor advised appellant of risk of shoulder dystocia and discussed its potential consequences and alternative of elective caesarean section, appellant would probably have elected to be delivered of baby by caesarean section - not disputed that baby would then have been born unharmed - appeal allowed.
Montgomery (I)
[From Benchmark Tuesday, 26 May 2015]

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    Queensland North Australia Pty Ltd v Takeovers Panel [2015] FCAFC 68
    Full Court of the Federal Court of Australia
    Dowsett, Middleton & Gilmour JJ
    Judicial review - corporations - primary judge dismissed application for judicial review of Takeover Panel’s declaration of unacceptable circumstances in relation to affairs of company made pursuant to s657A Corporations Act 2001 (Cth) - appellants contended primary judge erred in failing to find application to Panel and its declaration of unacceptable circumstances were out of time, or that primary judge erred in failing to find acquisition of shares was not a breach of s606 Corporations Act 2001 (Cth) - ss9, 601QA(a), 602, 606, 608, 610, 631, 657A, 657B, 657C & 657D - held: primary judge erred in failing to find application to Panel and its declaration of unacceptable circumstances were each made out of time - it was necessary for time to be extended in each case - appeal allowed - matter remitted - Panel should consider whether extension of time to bring application should be granted.
    Queensland (I B)
    [From Benchmark Tuesday, 26 May 2015]
    Kendirjian v Lepore [2015] NSWCA 132
    Court of Appeal of New South Wales
    Macfarlan & Leeming JJA
    Professional negligence - solicitors’ duties - advocate’s immunity - applicant travelling in vehicle - applicant injured when vehicle collided with other vehicle  - first respondent solicitor commenced proceedings on applicant’s behalf against driver of other vehicle - driver admitted liability - date fixed for hearing on quantum -  solicitor  briefed second respondent barrister to appear for applicant - driver’s legal representatives communicated offer to settle to respondents - applicant alleged respondents did not advise him of amount of settlement offer and rejected it absent instructions on basis it was too low - applicant sued respondents  in  negligence claiming difference between settlement offer and judgment as damages - primary judge summarily dismissed proceedings on basis respondents immune from suit under advocates’ immunity principle - held: allegedly negligent advice or omission to advise constituted out of Court conduct which led to continuation of Court proceedings - conduct protected by advocate’s immunity - appeal dismissed.
    Kendirjian (I)
    [From Benchmark Friday, 22 May 2015]
    Roads and Maritime Services v Grant [2015] NSWCA 138
    Court of Appeal of New South Wales
    McColl, Basten & Emmett JJA
    Negligence - respondent motorcyclist injured when motorcycle collided with pedestrian barrier erected on median strip in centre of intersection - primary judge found Authority breached duty and that its breach caused respondent’s injuries -  primary judge also found it would be just and equitable to reduce damages by 30% for contributory negligence -  Authority appealed - held: Authority not liable for alleged breach because statutory immunity in s43A Civil Liability Act 2002 engaged - respondent did not establish mechanism of accident was as he contended - appeal allowed.
    Roads (I C)
    [From Benchmark Monday, 25 May 2015]
    Coolbrew Pty Ltd v Westpac Banking Corporation [2015] NSWCA 135
    Court of Appeal of New South Wales
    Leeming JA, Bergin CJ in Eq & Sackville AJA
    Equity - trusts - primary judge dismissed appellant’s summons seeking declaration that certain funds placed on term deposit with first respondent bank in third party’s name were held by bank on trust for appellant - primary judge not satisfied on evidence trust made out - s58(3)(b) Bankruptcy Act 1966 - held: primary judge correct to conclude appellant had not discharged its onus of showing parties intended third party to hold deposit on trust for appellant - appeal dismissed.
    Coolbrew (B)
    [From Benchmark Monday, 25 May 2015]
    Erratt v Grills [2015] NSWSC 594
    Supreme Court of New South Wales
    Lindsay J
    Real property - dividing fences - trespass - dispute concerning management of boundary between two rural properties - plaintiff claimed entitlement to exclusive occupation and use of land owned by defendants in freehold title on her side of their dividing fence - plaintiff claimed that by venturing on her side of the fence had committed trespass - plaintiff claimed injunctive relief and damages - s14 Dividing Fences Act 1991 NSW(NSW) - characterisation and exposition of arrangement governing parties’ dividing fence - Landale v Menzies 9 CLR 89 - held: defendants substantially successful in opposing relief claimed by plaintiff - declarations proposed - summons otherwise dismissed.
    Erratt (B)
    [From Benchmark Thursday, 21 May 2015]
    TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575
    Supreme Court of New South Wales
    Campbell J
    Negligence - plaintiffs were victims of sexual abuse by stepfather - plaintiffs claimed damages from State and officer for personal injury and mental harm caused by continuation of sexual and physical abuse by stepfather after Department notified of their ill-treatment - held: Department owed plaintiffs duty actionable under law of negligence to use reasonable care in exercise of its powers conferred by s148B Child Welfare Act 1939(NSW) - officer owed no duty in exercise of powers under s148B as powers not conferred on her - Department breached its duty of care by omitting to notify New South Wales Police Child Mistreatment Unit of serious physical and sexual abuse suffered by plaintiffs - Department’s breach was not necessary condition of harm suffered by plaintiffs - judgment for defendants.
    TB (I)
    [From Benchmark Monday, 25 May 2015]
    Smart v AAI Ltd; JRK Realty Pty Ltd v AAI Ltd [2015] NSWSC 392
    Supreme Court of New South Wales
    Beech-Jones J
    Insurance - corporations - two proceedings brought against insurer under s601AGCorporations Act 2001 (Cth) -  in one proceeding plaintiff transferred amount to bank account of company which was finance broker - in other proceedings plaintiff transferred amount to company’s account - plaintiffs were persuaded to transfer funds by company’s general manager - general manager misappropriated funds - plaintiffs did not recover funds - company wound up and deregistered but was party to claims made insurance policy underwritten by defendant insurer - plaintiffs sued insurer under s601AG - whether company liable to plaintiffs immediately before deregistration - whether policy “covered” liability - held: company liable to plaintiffs for breach of contract - insurer could not invoke contributory negligence or proportionate liability provisions of Trade Practices Act 1974(Cth) (TPA) or Civil Liability Act 2002 to diminish quantum of liability  - plaintiffs also established liability on company’s part for  engaging in false and misleading conduct contrary to former s52 TPA - however Court upheld certain of insurer’s reasons for contending company’s liability - liability of deregistered company to plaintiffs not “covered” - proceedings dismissed
    Smart (I B)
    [From Benchmark Tuesday, 26 May 2015]
    Barrow v Bolt [2015] VSCA 107
    Court of Appeal of Victoria
    Ashley, Kaye & McLeish JJA
    Defamation - applicant made complaint concerning first respondent to Australian Press Council - respondents invited to respond - claim arising from email from first respondent to second respondent which was forwarded to Australian Press Council -  trial judge dismissed applicant’s claim - applicant sought leave to appeal - s33 Defamation Act 2005  - triviality defence - malice - applicant sought leave to appeal - held:  leave to appeal refused in respect of trial judge’s conclusions on issue of malice, and conclusion t applicant failed to establish first defendant knew of falsity of certain statement - trial judge correct to conclude respondents had established circumstances of publication were such that applicant unlikely to suffer harm to reputation as result of publications - leave to appeal refused.
    Barrow (I)
    [From Benchmark Monday, 25 May 2015]
    Southage Pty Ltd v Vescovi [2015] VSCA 117
    Court of Appeal of Victoria
    Warren CJ, Santamaria JA & Ginnane AJA
    Restitution - respondent’s signature on loan and mortgage documents forged by husband - lender sought restitution of money advanced on basis it was paid by mistake of fact - trial judge held respondent had changed position on faith of receipt of money such that it would be inequitable to require her to pay it back - held: trial judge correct to find that were it not for respondent’s belief deposit paid by husband, she would not have entered transaction - by time of lender’s claim, respondent had suffered irreversible detriment such that she would be in worse position if ordered to repay money than had she not received loan at all - change of position defence established - trial judge correct to hold it would be inequitable to require respondent to repay money - appeal dismissed.
    Southage (I B)
    [From Benchmark Tuesday, 26 May 2015]
    MJ Arthurs Pty Ltd v Portfolio Housing Pty Ltd [2015] QCA 86
    Court of Appeal of Queensland
    Gotterson and Philippides JJA & A Lyons J
    Construction contract - appellants appealed against finding by primary judge as to time at which respondents’ entitlement to profit share arose under oral agreement between them and appellants - appellants contended entitlement arose in respect of any given construction contract only when contract completed and actual profit could be ascertained - respondents contended entitlement arose when all administration work necessary for procuring it was completed by first respondent’s director - held: primary judge erred in finding respondents’ entitlement to profit share on construction contract arose when first respondent presented it for execution - in order to derive entitlement respondents required to perform tasks and responsibilities after presentation of construction contract for execution and up to point of completion - appeal allowed.
    MJArthurs (I B C)
    [From Benchmark Friday, 22 May 2015]
    Donald v Guillesser [2015] QCA 92
    Court of Appeal of Queensland
    Gotterson, Morrison & Philippides JJA
    Succession - husband and wife killed in an aeroplane crash - it could not be established which of them died first - husband left will - in clause of Will husband gifted everything to wife but if she died first, everything to be split 50 per cent to respondent sister-in-law, 25 per cent to brother and 25 per cent split between three others - sister in law sought  grant of letters of administration - appellant was husband’s mother - appellant claimed entitlement to estate on basis that ss33B & 65 Succession Act 1981 (Qld) had effect that gifts failed and estate fell for distribution as on intestacy” -  primary judge found estate should be administered by sister-in-law on basis of the gifts  - appellant appealed - construction of s33B -  application of s33B to Will - proper construction of clause of Will - held: gift of residue was enlivened because of s33B and did not fail - appeal dismissed.
    Donald (B)
    [From Benchmark Tuesday, 26 May 2015]
    Pike v Pike [2015] QSC 134
    Supreme Court of Queensland
    Atkinson J
    Succession - respondent executor and sole beneficiary of deceased’s Will was convicted of manslaughter of deceased who was his mother - applicant was deceased’s other son - applicant sought distribution of estate in his favour pursuant to substitutional clause of Will - whether or not provision in Will of deceased which left estate absolutely to respondent had failed to take effect with result whole estate left to applicant - held: applicant had proved respondent killed deceased and that killing was unlawful - forfeiture rule applied - provision in Will leaving whole of estate to respondent failed because he had been criminally responsible for testator’s death - estate of deceased to be distributed to applicant.
    Pike (B)
    [From Benchmark Monday, 25 May 2015]
    Morris v Redland City Council [2015] QSC 135
    Supreme Court of Queensland
    Martin J
    Negligence - plaintiff who had consumed alcohol injured in fall from cliff onto beach at Point Lookout on North Stradbroke Island at night while trying to locate stairs to beach - plaintiff sued council in negligence - plaintiff elected not to lead evidence against second defendant trustee of trust - plaintiff claimed track/path leading off from boardwalk had caused belief that path led to beach - ss13 15 & 47 Civil Liability Act 2003 - Council admitted duty to take reasonable care to avoid foreseeable risk of harm to plaintiff while he was at Point Lookout - held: Council did not cause or allow grassy path to exist - there was no path through headland to cliff - risk that someone might fall from top of cliff was not reasonably foreseeable - claim against Council dismissed - parties agreed on judgment for second defendant trustee of trust - plaintiff’s claim against trustee of trust had such remote prospect of success that action should not have been brought or continued - plaintiff to pay trustee of trust’s costs on indemnity basis.
    Morris (I)
    [From Benchmark Wednesday, 27 May 2015]
    Moon v Whitehead [2015] ACTCA 17
    Court of Appeal of the Australian Capital Territory
    Murrell CJ; Penfold & Burns JJ
    Negligence - trespass to the person - sexual assault - appellant appealed against decision in which Master awarded damages to respondent for injury causes by non-consensual sexual intercourse imposed on her by appellant - whether respondent had consented to engaging in the sexual conduct - held: there was ample evidence upon which Master entitled to find appellant had not satisfied onus of proving respondent had consented to sexual intercourse - impossible to say Master’s finding was against evidence or weight of evidence - Master erred by failing to afford procedural fairness to appellant in relation to award of aggravated damages - award of aggravated damages set aside - judgment varied.
    Moon (I)
    [From Benchmark Wednesday, 27 May 2015]
    Executive Summary
    Harris (a pseudonym) v The Queen (VSCA) - criminal law - charges of sexual offences - coincidence evidence inadmissible - appeal allowed
    B v R (NSWCCA) - criminal law - removal of child from jurisdiction in breach of s65YFamily Law Act 1975 (Cth) - appeals from conviction and sentence dismissed
    Summaries With Link
    Harris (a pseudonym) v The Queen [2015] VSCA 112
    Court of Appeal of Victoria
    Priest & Kaye JJA; Croucher AJA
    Criminal law - evidence - applicant charged with eight charges of sexual offences involving two complainants - applicant sought leave to appeal against interlocutory decision of County Court judge to admit coincidence evidence in trial of applicant - ss98(1) & 101 Evidence Act 2008 (Vic) - held: Court considered the coincidence evidence would be of probative value, but did not consider it had such cogency that it would have significant probative value - coincidence evidence  not admissible under s98(1)(b) - if Court had concluded evidence had necessary significant probative value, it would not be satisfied probative value substantially outweighed any prejudicial effect it may have on fair trial - test for admissibility under s101 not established - leave to appeal granted - appeal allowed.
    B v R [2015] NSWCCA 103
    Court of Criminal Appeal of New South Wales
    Ward JA; Simpson & Wilson JJ
    Criminal law - appellant convicted of offence against s65Y Family Law Act 1975 for removing her child from jurisdiction, without consent of father of child, or Court, on basis of belief that child had been sexually abused by father and that there had not been, and would not be, a proper investigation into sexual abuse allegations - appellant appealed from conviction and sentence - principal ground of appeal in respect of conviction concerned trial judge’s decision that appellant had not satisfied evidential burden necessary for the two defences she wished to raise for jury’s consideration - held: primary judge did not err in conclusions as to evidential burden, in ruling regarding the irrelevance of fact of sexual abuse or in relation to admissibility of doctor’s report -  appeal from conviction dismissed - appeal against sentence dismissed.
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